Friday, December 24, 2010

It was a good week for Obama according to most politicos. He got repeal of DADT, passage of the arms treaty with Russia, and adoption of the 9-11 victims’ medical funding. After a shellacking on November 2, many see these accomplishments as signs that Obama is not dead and that he is well on the road to redefining his presidency and proving that he will be able to work with the GOP for the next two years. There is, a new life for Obama and he demonstrated that he has the skill to work across the aisle. Obama proved his abilities and competencies this past week.

This is the conventional reading of what happened. But is this reality? Maybe, but I think a lot more has to do with the fact that Obama capitulated on one big item–the Bush era tax cuts–and as a result the GOP got what it really wanted and all else did not matter.

Let’s look at the victories of the last few weeks. Obama gets unemployment insurance extensions, some minor stimulus in the tax bill, and then all the legislation noted above. All good perhaps, but there are other ways to look at all this.

First, too little too late. By that, Obama gets all this way past when it mattered. He needed to get much of this before November 2, to help him and the Democrats. Repeal of DADT before then might have helped with his base. But it took until the last minute after the election to get it repealed. It provided no political bump for November 2, and it is not clear how much passage of any of these items will be either to his base or swing voters in 2012.

Second, many of these items should have been secured easily. An arms treaty, extension of unemployment, and DADT, all should have been easy. Some of them should have received broad GOP support especially when many workers are Republicans who have lost their jobs. Thus, it is good they passed, but that should have happened all along. Obama gets credit for doing now what should have been no brainers earlier in the year. Good job.

But was it Obama’s skills that rounded up Democrats and eroded GOP opposition? This is Obama’s read. However, for the most part, the GOP gave up fighting on these because in the end they were the hostages in a bigger battle–tax cuts for the wealthy.

It’s the (capitalist) economy stupid!What really mattered to the GOP was the extension of the Bush tax cuts to the rich. This is what they really wanted. It means mega billions for the rich, a massive continuation of wealth transfer or retention for America’s wealthy. It is worth hundreds of billions to them, even though the tax cuts do little or nothing productive in terms of producing jobs, investment, or helping the economy. The cuts do little to stimulate, they do little to ease unemployment, they do little to address home owner foreclosures, they do little to encourage capital investment in the new green economy or in upgrading our infrastructure. They do add $900 to the federal deficit!

The GOP got what they wanted. They and Obama were willing to mortgage America’s fiscal future to serve their political needs.

Once Obama capitulated on the tax cuts he essentially melted GOP resistance on everything else that was being held hostage. To the GOP they were minor issues. Don’t get me wrong, repeal of DADT is important, as is the arms treaty and the other measures passed. But they pale in comparison to the GOP and others in terms of the economic consequences of the tax cut. The cuts continue the economic era of Reagan and Bush, failing to really reverse course on what matters most–the economy.

The melting of GOP opposition on many issues demonstrates how many social and other issues are simply sideshows and wedge issues for the bigger game of the economy and protecting rich corporate interests. Sadly, Obama went along with that in his effort to refine his presidency. He got some things he wanted but at the expense of losing the big one on taxes and the economy.

Thus, the great skill Obama might have demonstrated this past week was to recognize that he could win on all the other issues so long as he gave on this big one. Merry Christmas from Barack Obama.

Saturday, December 18, 2010

**UPDATE**If you missed the political panel on Almanac Friday (12/17/10) you can watch the segment here. The panel is at about the show's halfway mark and the debate was kind of ugly!

In politics, as is true with most things in life, timing is everything. Opportunities come when windows open, but those windows do not remain that way forever. The DFL, Dayton, and Obama are the thought of opportunities in today’s blog.

Minnesota Democrats, Mark Dayton, and the Independence PartyFace it–the Minnesota Independence Party is a permanent minor party. After a highwater mark in 1998 when Jesse Ventura received 37% of the vote and won the governorship, the party has fallen into a permanent minor status. In 2006, Tim Penny received 16.2% of the vote for governor, in 2008 Peter Hutchinson received 6.4%, and in 2010 Tom Horner received 11.9%. In 2008, Dean Barkley received 15.2% as a Senate candidate. The party is more than a blip but it does not seem to have enough strength to be a serious challenger for statewide office in Minnesota. My guess, as I stated throughout the 2010 campaign, was that the Independence Party commands about 10% of the voting population. Its members seem to be composed of former moderate Democrats and Republicans, as well as others who politics do not line up with the two party profile.

At the same time the IP is about 10% of the voters, neither the DFL nor the GOP seem able to command a majority of the population. If the governor’s race is considered, there has not been a governor who received more than 50% of the vote since 1994. The 2008 Senate race shows the same, although the 2006 race did produce a majority with Klobuchar. The point here though is that the fate of the GOP, DFL, and IP are connected–all three are fighting for majority status and none can achieve it alone.

In a parliamentary system the permanent minority status of parties forces coalition governments to form and rule. Ventura sort of did that in 1998 when he picked his commissioners from across all party stripes. There is a similar opportunity here now for the DFL and Mark Dayton.

The DFL and Mark Dayton need to raid the IP. There is an opportunity here for the DFL and Dayton to reach out to the IP and bring them into their party. The GOP could do this too but seem to have abandoned this approach recently when it shunned its moderates who supported Horner. These Arnie Carlson and David Durenburger types have no place to go except a permanent minority status within a 10% IP. The DFL and Dayton should reach out to them? What should they do?

* Dayton should appoint Tom Horner and other prominent IP members to serve in his administration* DFLers should allow IP members to caucus with their party

In addition, now is the time to reconsider fusion. Fusion was a big issue about 15 years ago. It would allow cross party endorsements on the ballot. Thus, as is the case in NY, a candidate for the Democrats could appear on ballot also as the endorsed candidate for the Liberal Party. Here, fusion would allow a candidate to appear as the DFL and IP endorsed candidates. Fusion, which is not legal at present in Minnesota, potentially would allow for a building of political coalitions to form a majority party and the strengthening of a third party. IP voters who otherwise would not vote DFL would vote for the person as an IP candidate. Something that ranked choice voting will eventually allow for the same creation of new majorities, but I am not sure that alone with will do that even though I support RCV as a voting option.

Whatever the practical option is, the simple statement here is that there is an opportunity for the DFL and Dayton here–raid the Independence Party, bring their voters over, and use the chance to create a new majority.

Thoughts on DaytonA few quick thoughts on the Dayton transition. He has appointed good people so far, most notably Peter Watson as his counsel. The rest of his staff is good, but missing so far from the early appointments is a budget director. With a $6.2 billion deficit and the demands to have a budget in early January, one would think one of the first appointments would have been a budget director. Moreover, none of the early appointments are budget people. He need to act quickly. The best names out there? Matt Smith who was budget director under Ventura and Senator Dick Cohen who has done the budget for the Senate for years.

Lacking a budget person already has hurt Dayton. His meeting with the GOP legislative leadership was interesting and a nice gesture, but they are driving the budget agenda right now because Dayton does not have a budget person in place.

Additionally, Dayton keeps announcing how he is reaching out to the GOP and he seems to be modifying his positions. So far I have yet to detected the same with the MN GOP vis-a-vis Dayton and their views.

Thoughts on ObamaDayton’s compromise segues to Obama and his signing of the extension of the Bush era tax cuts. He justified the move as a necessary compromise, as a way to get middle class tax cuts, to get unemployment tax cuts, and to stimulate the economy. (See the above video link to TPT's Almanac to see me arguing with Larry Jacobs on some of the following points)

Bad economics. There is some stimulus here but not much. In many ways the tax cuts only continue the status quo and too much of the cuts go to the rich who will not use it to stimulate the economy unless you believe in supply-side economics. Second, despite Larry’s assertion that mainstream economists say it will raise the GDP by 1.5%, that bump is at best short term and wears off by 2012 ( also cannot find economists who are saying what Larry is asserting). Third, the cuts add $900 to the deficit, only delaying the inevitable problems of deficits and eventually spending cuts which will probably hurt the poor and middle class first. Overall, whatever short term economic benefit there is, the benefits are outweighed by the economic problems they create.

Bad politics. This is a naked grab by Obama to get middle class and swing voter support. I doubt it does that. Two years from now they will not remember this. Second, the tax cuts are extended only for two more years and in the middle of the next presidential campaign they will be debated again. Obama will again be unable to oppose their extension and again they will pass. Democrats who oppose them will be unable to do so because opposing tax cuts is never easy.

Obama basically sacrificed his political base and the economy for his political fortunes and I am not sure how much benefit he reaps from it.

Monday, December 13, 2010

The current Obama presidency came to an end last week. What it means for 2012 and his re-election bid is that for the first time I think there is a serious chance that he might not get reelected. The reasons for that are the economy, alienating his base, and potential white voter backlash.

In general it is hard to defeat sitting presidents. Yes, Carter and Bush I both lost, but it took bad economic conditions and a third party vote for Ross Perot to do that. Previous to that, Ford did lose but he was barely an incumbent and he pardoned Nixon, and LBJ opted not to run. However, before that, it was Hoover (1932), Harrison (1892), Cleveland (1888), Van Buren (1840) and John Adams (1800) who lost when running for election. The economy and major crisis seem to be the usual reasons for incumbents losing.

Kerry in 2004 is a testament to how difficult it is to defeat a sitting president. They have to make major mistakes or blunders to lose, or be so dragged down with the economy that their candidacy is destroyed by it. Obama faces both.

The economy remains a mess. In a couple of blogs ago I wrote about the persistent unemployment, the failure to address the mortgage market, and the perception that he favored the banks over the people. These problems persist. Yes, Obama will get some bump from the economy in the next year or so but short of a miracle too many people will be jobless.

Beyond the economy, two fatal blows were delivered. First the failure to repeal “don’t ask, don’t tell” means he has dramatically lost or alienated the young under-30 vote and the GLBT community. They supported him enthusiastically in '08 and stayed home in '10. The latter will be true in '12.

In addition, his compromise on the Bush tax cuts infuriated his liberal base. The cuts may still pass, but he threw Democrats and liberals under the bus in order to appease swing voters. The House refusal to bring the original proposal to a vote demonstrated the anger. Had this been a parliamentary system, the refusal to vote on it would have triggered a vote of no-confidence and a collapse of the government. That is what happened last week effectively.

The fatal error here is Obama alienated his base. They will not vote against him in '12, but certainly they will not come out strong for him. He is counting on them having no alternative and voting for him. Don’t count on it. Ignoring your base and raising expectations–only to disappoint–is the surest way to lose them.

Thus, Obama’s strategy? Hope your base holds their nose and votes for you in '12 out of fear of the GOP, and try to regain the swings voters. Preliminary polls suggest the swings like the Obama tax deal, but is it enough to swing them to his side? Maybe not.

Many who voted for Obama in '08 were whites so disappointed with Bush and the economy they were willing to take a chance. Fear and disgust melted some white opposition but they may not happen again. Obama may have a harder time getting their support.

So, how is the end of the Obama presidency? Obama is swapping one type of presidency for a another. If the narrative of the first presidency was change now it is survival. It is a defensive presidency, one aimed at governing with the support of the GOP and swings and not the Democrats. Why after two years he thinks he can win over the GOP is a mystery to me. Finally, I remain perplexed regarding the narrative that Obama has for the next two years. What is it?

A Note on Michael BloombergBloomberg has said no to running for president in '12. He has a great opening. A combination with Obama disenchantment, a GOP field that is ultra conservative, and the independent streak the NYC mayor has (plus his money), give him a great opening in '12 if he wants it.

Wednesday, December 8, 2010

What took Emmer so long to concede the election? Many of us saw the futility days, if not weeks ago, but Emmer troopered on. But many factors came to a head on Tuesday making it clear that it was over.

The recount process was effectively over and Mark Dayton maintained a nearly 8,800 vote lead. The Minnesota Supreme Court ruled against Emmer on his argument about reconciliation and the matching of the number of ballots with voters. He had withdrawn almost all of his frivolous and non-frivolous ballot challenges, and there appeared to be no other place to add to his totals. The math was against him, and opinion polls showed nearly two-thirds of Minnesotans said he should concede.

All of these factors were important considerations to his decision. But, perhaps the most underrated variable or factor transpired last Friday when Justice Paul Anderson–in his capacity as a member of the Canvassing Board–hinted to Emmer’s attorney (and former chief Justice) Eric Magnuson that bringing a court case might violate state law and legal ethics. It was from that point on that Emmer withdrew many challenges, leading to the concession on Wednesday.

What was Anderson talking about and how did it affect Emmer’s decision to concede? What might his comments say about others still thinking of challenging the election outcome?

Emmer Concedes..But Will Others?Emmer has conceded and stated he will not raise a legal challenge to Dayton. But will the Republican Party or other loyal supporters forego a challenge? That is the great question. On December 14, the State Canvassing Board will meet, likely declaring that Dayton has the most votes and then issuing him an election certificate. However, what is not clear is whether the GOP or someone else will contest the election outcome, thereby forcing a trial, the delaying of the issuance of an election certificate, and the possible seating of Dayton as governor on January 3. This delay means Pawlenty stays on as governor–with a Republican legislature–foreshadowing an opportunity to adopt a legislative agenda many conservatives have wanted for decades.

Filing an election contest is tempting. Yet those who see it as a way to damage Dayton or push a Republican agenda, they should think again. Legally, it is not so clear that a challenge would get far and instead, it could be dismissed quite quickly.

Bringing the Election ContestEven if Tom Emmer opts not to contest the election that does not end it. Minnesota Statute §209.02 permits any voter in the state to bring a contest, challenging the “irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, over the number of votes legally cast in favor of or against a question, or on the grounds of deliberate, serious, and material violations of the Minnesota Election Law.” This is a broad statute, permitting almost anyone in the state to challenge the election for almost any reason.

Even if Emmer does not contest it, it does not preclude State GOP Chair Tony Sutton and the Republican Party, or any other party in the state from doing it. Some interest group or party could contest the election, believing it could delay the seating of Dayton for months.

Responding to a Contest But if a contest occurs, will it be a repeat of the nearly six-month delay in seating of a winner as occurred with Franken and Coleman? No, there are critical differences here.

First, the vote difference here is enormous by comparison. The math is against Emmer winning. There are not enough votes in dispute to reverse Dayton’s lead. Additionally, there are really no good legal arguments left for Emmer to raise now that the Supreme Court ruled against him. There is also no evidence of serious or widespread voter fraud. In short, whatever legal arguments Emmer or a third party could raise, they would not change the outcome of the election–Dayton still wins.

If a contest is brought, Dayton’s attorneys could respond by saying that they concede all the legal arguments raised by the other side but nonetheless it would still not change the outcome of the election. This is sort of like asking for a directed verdict or a summary judgment in the case. These options could dispose of the contest quickly.

But a second option could prevent the case from going anywhere. Rule 11 of the Minnesota Rules of Civil Procedure precludes lawyers from filing suits that are frivolous that seek to harass, cause unnecessary delay, or are brought for other improper purposes. Similarly, legal ethics, specifically Rule 3.1 of the Minnesota Rules of Professional Conduct, prohibits attorneys from raising frivolous claims. Lawyers who bring such cases run the risk not only of having them immediately dismissed but also face sanctions from the courts. Every first year law student learns to fear Rule 11 sanctions.

One could argue that any election contest that simply seeks to delay the seating of Dayton is frivolous and runs a Rule 11 risk. Moreover, even if there are some outstanding legal issues or questions, bringing a court case here is risky. Unless one can demonstrate that but for these legal issues Emmer would have won, such a lawsuit could be labeled as frivolous. Dayton’s lawyers could raise a Rule 11 claim and perhaps get the case dismissed almost immediately, along with subjecting any attorney both to legal sanctions and the threat of ethical discipline.

Overall, those who think that filing a contest is a simple way to delay matters should think again. Their suit might easily be dismissed and their attorneys may face severe legal and ethical sanctions.

Saturday, December 4, 2010

The Minnesota Canvassing Board met yesterday (12-3-10) to review ballot challenges during the Minnesota governor’s race recount. Two fascinating things emerged: First the numbers regarding the challenge, second the dialogue between Tom Emmer’s lead lawyer, Eric Magnuson and state Supreme Court Justice Paul Anderson.

First, with almost all of the recount done, Dayton still leads by approximately 8,800 votes. The recount, as of 2 PM yesterday, yielded 2,880 frivolous challenges by either the Dayton or Emmer side, and 909 non-frivolous by the same. The total is 3,579, the bulk of them coming from the Emmer camp. The Dayton camp had then announced it was withdrawing all these challenges.

When the Canvassing Board examined the frivolous challenges, it became clear to all that they were in fact frivolous. For example, in Renville County Emmer people appeared to challenge all ballots where there was a write-in candidate for the school board. Clearly Magnuson when confronted with that fact was embarrassed and had to admit that he needed to withdraw these challenges.

What the review of the ballot challenges demonstrated is a couple of things. First, even if all the challenges by Emmer broke his way he could not eliminate the 8,800 vote lead that Dayton has. Second, the frivolous challenges were just that–frivolous–and they will be rejected. This further narrows any gain that Emmer may have.

Overall, what the recount suggests is that for the most part the Minnesota election system is probably 99.9%+ accurate in reading voter intent and counting. The final vote after the recount will be essentially the same as it was before the recount started.

These facts are increasingly clear to Emmer’s attorney Eric Magnuson. I enjoyed the exchange between them. Anderson first pointed out that lawyers cannot bring frivolous lawsuits (Rule 11 as we all learn as 1L law students). Bringing such suits is sanctionable and unethical for lawyers. Second, Anderson asked Magnuson if he really wanted the Canvassing Board to review all the frivolous challenges even though it would potentially take a lot of time and even if he did prevail, they still would not win.

This is where Magnuson offered a threat. He said that he expected the Board to do its job and review all these ballots in the interest of obtaining an accurate count. He did not address the issue that the numbers do not work for them. His threat seemed to be if you do not examine them now (which could delay finishing the recount and certifying Dayton the winner) then Emmer might have to ask a court to do that later.

Thus, the real strategy emerges–and Anderson pointed it out. Emmer and Magnuson seek to delay the recount process now and perhaps make it difficult for Dayton to take office on January. If the Canvassing Board does not do what they want then they will go to court afterward to raise their legal challenges–even if it does not change the result. There is also no promise that they will not seek to delay now and go to court later. Thus the threat.

As I watched the hearing I thought a lot about legal ethics. I teach professional responsibility or legal ethics to law students. Anderson was correct that lawyers cannot bring frivolous claims and we have an obligation not to use the legal process simply to obstruct justice. That is what is going on here. I thought also about how current Minnesota law allows an election contest almost for any reason. Ethically, lawyers should not be able to bring election contest suits unless they can show that were they to prevail in their arguments the result of the election would have gone the other way (they would have won).

The ethics problem I see here is that even if Emmer could prevail in all his legal arguments, that will not produce enough votes to change the outcome of the race. Dayton still wins. If legal ethics does not prevent bringing this type of suit, counseling a client such as Emmer (who is also a lawyer) that he should not take this type of action because it is purely vindictive should be what we ask of a client. But in the end, I recommend we amend Minnesota election law. The law should say that one does not have an automatic right to file a contest. Instead, there must be a “but for” threshold that needs to be met. By that, an attorney would have to plead that but for the legal mistakes made, the results would have been different. This should be the standard governing frivolous suits. If one cannot show the results would have been different then one should be barred from bringing the suit or judges should be allowed to dismiss on motion. This may still be a possibility for Dayton lawyers should Emmer go to court, but a statutory rule would be better here.

Economics: Obama’s ProblemThree bits of bad economic news this week. First, only 39,000 new jobs were generated for the American economy, pushing the unemployment rate to 9.8%. Second, the Financial Times pointed out this week that in the next few months 6.5 million homes will go into foreclosure. Third, The Economist pointed out that October, 2010 existing home sales dropped by 2% compared to September, and by 26% compared to October, 2009. Sale of foreclosed or distressed homes constituted 34% of all sales in October, 2010.

The US economy remains weak, despite the consumer holiday shopping rush and record profits for corporate America. With an anemic GDP growth rate in the third quarter of 2.5%, unemployment is not turning around soon. Weak employment and home sales (and continued foreclosures) suggest more aggressive measures are needed to help the economy. However, I see little coming from the Obama administration, even without the coming gridlock from a new GOP Congress.

Obama has a problem. Yes “it’s the economy, stupid,” but it is also him. He helped the banks and they are again profitable but he failed to help homeowners and jobseekers very much. Getting extended unemployment benefits is a short term fix, but does not to really help the economy, those looking for work, or those losing their homes. Obama and his economic team never seemed to get it in the first 22 months and they still seem clueless about the need to directly intervene into the mortgage markets to stabilize the economy and to take more direct action to encourage job growth. Simple tax cuts that are not targeted will not solve those problems.

The economy wrecked Bush I when he ran for re-election. This is Obama’s problem now to worry about.

Saturday, November 27, 2010

A few people called me to ask if there was a math formula to calculate the actual number of ballots that would have to be pulled to allow Emmer to overtake Dayton’s lead. Here it is.

D-E=G

Where:D= Number of votes Dayton loses in reconciliation per 100 ballots.E= Number of votes Emmer loses in reconciliation per 100 ballots.G= Net gain(loss) of votes to Emmer in reconciliation per 100 ballots.

1/100 (N +(G)) =8770

WhereN= Number of ballots removed in reconciliation.

Thus,Assume for every 100 ballots removed during reconciliation, 60 below to Dayton and 40 to Emmer.

D-E=G60-40 = 20

1/100 (N +G) =8770

1/100 (N (20))= 877020N = 877,000N = 43,850

Now assume that for every 100 ballots removed during reconciliation, 50 below to Dayton and 45 belong to Emmer.

D-E=G50-45= 5

1/100 (N +G) =87701/100 (N (5))= 87705N= 877,000N= 175,400

Notice several things with reconciliation. First, assume during reconciliation that Emmer and Dayton are close in votes statewide and therefore removal of ballots would produce a rough equivalent for each of them. In this scenario for every 100 ballots removed 50 belong to Dayton and 45 to Emmer. This is a net gain of 5 for Emmer. This would require 175,400 ballots to be removed from the state. This is 175,400 phantom or overvotes. An improbable number.

Second, since Emmer and Dayton in the general election appeared to receive about the same percentage of votes, randomly removing ballots during reconciliation to produce a 50/45 let alone a 60/40 ratio is statistically near impossible. This is a point made in the Pioneer Press last week by UMN statisticians.

Third, if in fact ballot removal during reconciliation could produce 50/45 or other ratios like this, it suggests that in fact Dayton did get more votes than Emmer and that what the latter is seeking to do is shrink the size of the voting pool until he wins. There is only one way Emmer can do that and win–cherry pick the electorate.

Specifically, look to the three biggest counties for Dayton–Hennepin, Ramsey, and St. Louis. If Emmer can concentrate on removing ballots from these counties then he runs a statistically better chance of winning than if ballots are generally removed by reconciliation across the state. Thus, Emmer’s route to victory? Remove ballots in counties that went for Dayton and hope it alters the outcome.

This explains claims of fraud in these three counties. Assert fraud here, remove (presumably Dayton) ballots, and use that strategy of vote suppression to win. This is a cherry-picking strategy no different that what Bush accused Gore of in Florida 2000 when the latter only wanted recounts in the three counties he thought he had most to gain. Here, Emmer wants to remove ballots from the three counties he did the worst in, hoping to achieve victory by not counting every vote but by suppressing selected ones.

Tuesday, November 23, 2010

There were no surprises in the rejection on Monday of Emmer’s petition before the Minnesota Supreme Court demanding reconciliation to take place prior to the recount beginning. That decision, along with the State Canvassing Board’s determination that the difference between Dayton and Emmer is 8,770 votes, or less than 0.5% (less than one-half of one percent) means the state mandated recount will begin on Monday.

But what if Emmer got his way? By that, what if in fact it is the case that there are phantom votes in Minnesota? What if in fact there are more ballots than those who voted, necessitating reconciliation? What if, per state law, election officials did randomly remove ballots from those lawfully cast as specified by state law, could Emmer win? In theory yes, but the math is against him.

How to do ReconciliationThink about how reconciliation would work. Assume that there are 1,000 overvotes in the state of Minnesota. This means there are 1,000 more ballots than signatures in the registry. This means that 1,000 votes would have to be removed from around the state to bring the total number of ballots in line with the number of people who actually voted. Both Dayton and Emmer received approximately 43% of the statewide vote. All things being equal, a random distribution of 1,000 ballots removed across the state would mean 430 removed that had voted for Dayton and 430 for Emmer. Emmer is thus still behind by 8,770 and he has gained nothing. He still loses.

For Emmer to win on reconciliation, he has to assume more of the ballots removed per reconciliation belong to Dayton as opposed to him. Consider some possibilities.

Let us assume that if ballots had to be removed, 60% of all ballots removed cast a vote for Dayton and 40% cast a vote for Emmer. We shall assume no ballots removed voted for Horner. With this 60%/40% ratio there would have to be 43,850 ballots removed for Emmer to come even with Dayton and negate his 8,770 lead.

Spelled out in more detail:

.6x X 43,850 =26,310.4x X 43,850= 17,540 8,770

Assuming 60% of the ballots removed is rather optimistic for Emmer. Assume instead that 50% of the ballots removed are cast for Dayton and 40% are for Emmer. The remaining 10% are for Horner and other candidates. With this ratio there would have to be 87,700 ballots removed for Emmer to pull even.

But is there that much Fraud or Error?Thus, for Emmer to tie Dayton, he would need at least 43,850 ballots to be removed. More likely, he would need to have closer to, if not more than, 87,700 removed. This means there has to be at least 43,850 overvotes or phantom votes (to use Emmer’s term) for him to at least tie Dayton. Given that there were 2,123,369 ballots cast in 2010, one has to assume at a minimum that 2% of all the votes cast were phantom, with it perhaps closer to 4%. This means that at least 2-4% of all ballots cast were improperly counted and need to be removed.

The degree of fraud or error to produce these numbers is unlikely. Under no conceivable circumstances can I imagine this type of error rate in the state. But this is precisely what Emmer has to assume if he were to win on his reconciliation argument.

What is my point?The point is simple. Emmer cannot win even if he gets his way and were he to have won or would win his reconciliation legal argument. The math is against him given the number of ballots and errors that would have to occur for him to prevail. The outcome (Dayton winning) does not change if Emmer would have won his legal argument.

A Legal Issue: Reconciliation is UnconstitutionalFinally, assume that we do have to do reconciliation if there are discrepancies as Emmer alleges. The stated statutory remedy is randomly removing ballots. If that were to occur I think the state law is unconstitutional. By that, if voting is a fundamental right protected by the First and Fourteenth Amendments (and that is true), subjecting voters to random denial of having their ballot counted because of election official counting errors or mis- or maladministration is clearly a denial of a right to vote. I think the current state law is unconstitutional

Saturday, November 20, 2010

Alexis DeTocqueville once stated in Democracy in America: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Consequently the language of everyday party-political controversy has to be borrowed from legal phraseology and conceptions.” How true that is. Behind every legal question is a political issue. The same is true with the Minnesota Republican Party going to court this week asking for a reconciliation of votes in the 2010 gubernatorial election, claiming there are phantom votes out there that may have cost Emmer the election.

This is a legal challenge without merit. However, the issue is not about the law, but laying the political foundation or cover for a possible legal challenge to delay the seat of Dayton after he is probably declared the winner in mid-December.

Let us look at the so called legal claim. It asserts that the Hennepin and Ramsey County election officials have failed to undertake a reconciliation of votes after the election. Stated simply, there are more votes or ballots than actual voters–thus phantom or manufactured votes. In effect, vote fraud. The suit asks for reconciliation to take place before the State Canvassing Board meets to order a recount.

The suit is meritless and the timing of it is interesting. The period between election day and when local canvassing boards meet and then before when the State Board meets, is set up for election officials to finalize the count. This is routine and happens every election where the vote totals change due to counting and reconciliation. Thus, the lawsuit–when you cut to the chase–is to order the election officials to do the job they are already doing! Big deal.

The suit came about one week before the State Canvassing Board will meet. This is legally significant. As I point out in a Law and Politics piece by Paul Demko a court will likely invoke a well established administrative law rule that requires you to exhaust your administrative remedies before going to court. What this means is that the courts will not act until the election officials have finished doing their job. If when they are done there is a problem then the courts will act. Moreover, another legal doctrine comes into play–injury. Even if there are phantom votes, it is possible that the Canvassing Board and then eventual recount will find and correct the problem. Until such time, Emmer has suffered no real legal injury. Therefore, the court will not act.

Any lawyer who has taken administrative law or graduated from law school kindergarten knows these legal doctrines. So why file the suit? Enter politics.

First, Andy Birkey of the Minnesota Independent points out the affidavits filed by the GOP in the suit where mostly from Republicans. This fact, along with the flimsy legal assertions, raises suspicion, as I point out in that piece, that the suit is political. But what is the political motive?

Quite simply, I suspect that most Minnesotans do not want another recount but the law will require it. There is little indication that Dayton’s 8,700 vote led will change and he will not emerge the winner. In fact, to the best of my knowledge, no candidate with a lead this large has ever had it reversed on a recount. Thus, when on or around December 14, when the Canvassing Board declares Dayton the winner, Emmer and the GOP will have a hard time convincing Minnesotans that they have meritorious legal claims (that could reverse the election) justifying going forward. They need political cover. That is what this suit and their rhetoric are about now.

The goal is twofold: First, to raise suspicions in the minds of Minnesotans that there are serious legal questions about the race. Do that by raising questions of phantom votes, voter fraud, of manufactured votes. All this is an effort to provide political cover for a suit to delay seating Dayton so that they can have control of the Legislature and the Governor’s office for a few precious months. Over the next few weeks look to see allegations of fraud increase. Look to rhetoric stating “We want to make sure every vote counts” or “We are bringing this suit just to make sure the election is fair,” all as ways to justify a court challenge.

The second goal is to placate supporters. Face it, Emmer and the GOP ran a bad gubernatorial campaign and lost to Dayton who ran a good one. There is finger pointing and blame going around. Sutton and the GOP raise this challenges to shift the blame elsewhere. We did not lose, the other side cheated or won by fraud. This suit then simply is to comfort the faithful base.

About a week ago I was standing in the Hamline parking lot in the rain talking to my law school dean. He asked me what legal theories would justify a court challenge in the gubernatorial race. I said I could not come up with any serious enough that would eventually change the outcome. That is still my sense today.

Wednesday, November 10, 2010

Keep Monday night open! I am going to offer an hour-long interactive video/audio chat with the public regarding the 2010 elections and offer predictions for how politics are likely to play out nationally and in Minnesota. The online event will take place Monday, November 15, 2010 from 7-8 p.m.(CST).

I'll be utilizing the latest technology, Elluminate Live!, a web conferencing program and virtual environment to provide a fluid, powerful video chat experience with up to 100 chat participants. I'll respond to questions and comments from those participants while leading a discussion about the 2010 election results locally and nationally. I also plan to address what Minnesota is likely to experience once a new governor is named and how it may differ depending on which candidate claims the spot and when they do so.

I'd love for anyone interested to 'attend' this online event. To join the session, please click here within 30 minutes of the session start time.

To view the hardware and software pre-requisites for Elluminate Live! click here.

Monday, November 8, 2010

Politics is about power–getting it, exercising it, and holding on to it. This explains the intensity of campaigns and of strategy in governance. This will also suggest some interesting issues as the recount moves forward and once a new governor is selected. Assume power is what politics is about. How should that play in for the recount, GOP control of the legislature, and Dayton, assuming he becomes governor? Here is my pale attempt at Machiavelli–writing about how to get and keep political power.

Recount PoliticsAssuming by November 23, the margin between Dayton and Emmer is less than ½ of one–percent, there will be a mandatory recount. It is curious to note that at present the difference between the two candidates is approximately four-tenths of one percent. This past session the legislature voted to reduce the recount margin to 0.25% but it was removed in conference committee. Had it passed and been signed by the governor we might not be talking mandatory recount now.

It made sense to lower the threshold. Reforms in voting technology and in absentee balloting make errors less likely now than in the past. Second, in a state of 5 million people and approximately 3.6 million votes, differences of ½ of one percent are far greater in terms of the number of votes than in a state of 3 million voters. A one-half percent gap is a lot of voters. In this race, making 9,000 or so votes is far harder than a few hundred from even just a couple of years ago. Lacking a mandatory recount, Emmer would have to decide if he wishes to pay for an optional one. The mandatory recount will probably cost more than $100,000–at taxpayer expense. Had Pawlenty signed the bill taxpayers might be saving money.

Assume the recount proceeds. Sometime after December 14, when it ends the loser–and presumably Emmer–will have to make a choice. Do you accept the recount and move on or challenge it. Power politics suggests go for broke and challenge. Some worry the GOP will use the challenge to delay seating Dayton so that they can pass a quick budget, cut taxes, do redistricting, and address social issues while they have control of both branches. Yes, this is tempting. Pawlenty could use this to burnish conservative credentials for a presidential bid, demonstrating what he could do as a GOP president presiding over a GOP Congress.

But there is danger of overreach. Minnesotans are fed up with recounts. An appeal to the courts by Emmer and the GOP may look like a pure power grab and backlash against them. Thus Sutton and Emmer need to weigh backlash against opportunity. Backlash could end a GOP legislative majority in 2012, a year that may be more DFL friendly with Klobuchar and Obama on the ticket.

Dayton’s OpportunityWhat should Dayton do? Some DFLers bemoan that he is powerless now that the GOP has legislative control. Not really. Look at how Pawlenty has outfoxed the DFL legislature for the last few years. MN governors have lots of power–vetoes, line item vetoes, executive orders, and other tools of appointment–to exercise. Dayton needs to use them.

The first issue for Dayton is who he plans to appoint to what. DFLers are salivating, finally patronage after 20 years+ of spoils drought. But Dayton and the DFL have an uneasy relationship and he may not necessarily appoint in ways that simply reward a party not always supportive of him. He needs to appoint to reward supporters, cement his coalition, and build for the future to take back DFL control of the legislature in 2012.

First thought: Name Tom Horner to be in your administration. He offered on election night to serve the next governor. Take him up on that and use it as a way to build bridges with Independence Party people. This is an opportunity to reach out to moderates and pull them away from the IP to the DFL. The IP might be a permanent 10%party. Use this as a chance to bring them over and party-build. I hate to say that this is an opportunity for party-raiding but this is the time to do that.

Second thought: Dayton has a four year term. Because of redistricting, all House and Senate terms are two years. Use this time frame to pressure the GOP. They want to hold power. If they overreach in the next two years you can point that out in 2012. Will the GOP risk cuts to K-12 and throw grandma out of the nursing home when they face election? Force the GOP to make the tough budget choices and then use the veto and bully pulpit as Pawlenty did to attack them.

Third thought: Effectively MN has an appointed judiciary with 90% of judges reaching the bench initially by gubernatorial appointment. Dayton will be the first DFLer in 20 years to appoint judges. Use that opportunity wisely.

ConclusionCrisis is both a challenge and opportunity. Dayton, Emmer, the DFL, and the GOP face crises if they wish to maintain political power. Times like now power is in flux and opportunities portend.

Saturday, November 6, 2010

Unless the recount reverses it, Mark Dayton is Minnesota’s next governor and the first DFLer to win since Perpich in 1986. Contrary to assertions by GOP State Party Chair Tony Sutton that something smells fishy when Republicans win control of the legislature and the Oberstar seat but lose the governor’s race, neither fraud nor shenanigans need be invoked to explain the outcome. Instead, the simple answer lies in the fact that Tom Emmer and the GOP ran a horrible campaign and it was only the backlash against Obama and the Democrats that made it as close as it was.

No Fraud, No FoulAt the most simple level, by the logic of Sutton’s statement the GOP should have won the offices of Secretary of State, Auditor, and Attorney General, but they did not. Additionally, Sutton apparently ignores the phenomena of ticket splitting–voting one way at the legislative and another at the constitutional office level. Finally, by his logic, one could argue that Pawlenty should not have been elected, at least in 2006, because of the overwhelming vote for DFLers that year.

No, Sutton’s comments don’t make sense. They instead prematurely raise the specter of fraud, seeking to insinuate that because (in his belief) Franken only beat Coleman due to fraud, the same must be true here. Of course Sutton forgets that Coleman was never able to prove widespread fraud in court and his attorney, when appearing before the Minnesota Supreme Court, admitted the same. As I have written elsewhere, the best studies and empirical evidence on voter fraud is that it is negligible at best. Fraud is the unlikely answer for why Dayton won.

Instead, Sutton’s comments remind me of the great line from Hamlet: “The lady doth protest too much.” The real roots of Dayton’s victory lie in part in how bad Sutton, Emmer, and the GOP were in running the governor’s race.

Dayton’s CandidacyUnfortunately we do not have exit polls to assess fully why people voted the way they did. We do have election returns revealing that Dayton won the metro area and St. Louis County as expected, and he also did well in other rural areas, at least compared to recent DFLers. But our information is limited. Thus, some conjecture is necessary.

Dayton’s apparent victory stemmed from several advantages he had. First, there was the overwhelming name recognition, especially among the elderly. As flawed as most pre-election polls were, this name recognition helped. Elderly vote, and that matters.

Second, Dayton was the only major party candidate with a lieutenant governor from greater Minnesota (here the Iron Range). This advantage was critical to Dayton’s DFL primary victory.Third, Dayton had public sector union endorsements because of his stance against more budget cuts. While unions are experiencing declining political clout, one can presume AFSCME got out the vote to help Dayton and preserve their jobs.

Thus, think about it–Dayton reunited the old DFL coalition of urban liberals, unions, and the Iron Range. This is the classic recipe for DFL success in yesteryear. He was the first DFLer to bring this coalition together since Perpich. He did it with a reinventing of the old Perpich slogan of making Minnesota the “brainpower state.” This time Dayton stressed education in general, appealed to female voters, and forged a 2010 version of the 1986 message. How odd? An almost back to the future campaign tactic. Long term, such a coalition may not work, especially if your name is not Dayton, but this time it did.

But one should also not forget Dayton’s fortune helped. He outspent Emmer. He stayed on message talking about education and benefitted from a state less adverse to taxes than the nation as a whole.

Emmer’s CandidacyEmmer ran a terrible campaign. It started with his convention speech when he declared he would run from the right and not the center. Generally you cannot win from the extreme when you only motivate your base and do not appeal to swing voters. The balance of power is capturing swings. Nationally, Democrats had the swings in 2006 and 2008, but lost them in 2010. Emmer never had them in 2010 since he disavowed them from the start.

Second, Emmer had a terrible summer. His missteps on taxes and tips cost him. He let the DFL paint him as a right-wing nut and he never overcame that image. In someways he was swiftboated by the DFL and like Kerry in 2004, he never overcame that image.

Third, Emmer had a McCain problem. In 2008 McCain knew “change” was the mantra of the year but how to run on change when you are of the same party of sitting president whom the public wants to change? Pawlenty was Emmer’s Bush. Minnesotans wanted change and the DFL tied Emmer to Pawlenty. Emmer talked of change but had the same problem when McCain talked of it.

Finally, the GOP and Emmer tried to use the national strategy at the state level. It worked with the legislative races, but not with the gubernatorial race so much. Sometimes cookie cutter strategies do not pan out.

The Horner EffectHow did Horner factor in? Whom did he hurt? I think he hurt Emmer more, but not for reasons most think.

I participated in a Republican Jewish forum about one week before the election. Sue Jeffers, Mitch Berg, and others were on the panel with me. When someone asked about whether they should worry about moderate GOPS such as Arnie Carlson, David Durenburger, and Al Quie endorsing Horner, Jeffers and others said let them go. They disparaged them as RINOs and were glad to see them go. Emmer and Sutton simply wrote off and ignored the old moderate Republicans, taking the Jim Demint tactic about ideological purity above coalition and victory.

The Horner press conference where many former GOP legislators endorsed him spoke also to that alienation they felt. Similarly, on November 5, I spoke to the Minneapolis Rotary club and lunched with one of my favorite former GOP state senators who expressed the same feeling–they were not wanted!

My point? Horner did not steal voters from Emmer. Emmer never went after them. Even if Emmer were not in the race I doubt Emmer would have gotten them. Either they would have stayed home or at best split with Dayton. But given Emmer’s lack of appeal to swings, Dayton’s victory might have been greater.

The Oberstar EffectOberstar lost because he ignored his district and took his victory for granted. It was like a page out of Edwin O’Connor’s "The Last Hurrah." One DFL precinct captain told me she never got a call from the Oberstar people. Additionally, the southern part of the 8th district is more conservative than the northern part and Oberstar was weak there, counting on the northern part to rescue him. It did not because he ignored it.

However, the Democrats on the Range are changing. They are perhaps becoming more of what used to be called Reagan Democrats. This is a concern for the DFL in the future.Overall, had Oberstar run a better campaign and won Dayton might have done even better than he did.

ConclusionA better than expected Dayton campaign, a horrible campaign from the right by Emmer, a national GOP anti-Obama surge, and a pathetic Oberstar campaign can account for much of the gubernatorial outcome. One need not invoke fraud or nefarious reasons to explain Dayton’s victory.

Last wordI predicted a 46% (Dayton), 43% (Emmer), and 12% (Horner) result. The final was tally as of today is 43.6%, 43.2%, and 11.9%. Judge for yourself how I did, especially compared to the pre-election polls!

Thursday, November 4, 2010

Why did the Democrats lose on Tuesday? Explanations will range from the election being a referendum on Obama, Obamacare, and perhaps the economy. Pundits and politicians–both Democratic and Republican–will contend that Obama strayed too far to the left, now forcing him and his party to the right as they prepare for 2012.

Yet this explanation and strategy fails to capture the full scope of the errors committed by the Democrats. What were those errors? Simply put, he ignored the basic rules of politics that he appeared to understand so well in 2008.

The Narrative. At its most basic, politics is the power of a compelling narrative. It is a story that describes who you are and what you want to accomplish. The Democratic narrative for 2008 was simple–“Change.” Obama and the Democrats promised change, and that drove them to power. But they lacked a good narrative this year.

In a year where the economy still stunk, how did Obama defend his stimulus bill, financial reform, and health care changes? The narrative was simple: “It could have been worse (had we not acted).” Such a narrative hardly inspires voters or wins over swing voters, but that was their narrative. For the Republicans, their narrative was also simple–“change.” They appropriated the Democratic narrative and used it against them.

Leadership. Obama demonstrated a striking lack of leadership. He wanted health care and financial reform but he delegated the tasks to Congress. The same was true with global warming and other issues. Yet Obama failed to take ownership for the legislation, letting others drive the agenda, producing changes that were more pork than policy.

Timidity. Obama and the Democrats promised a lot, but delivered very little. They passed stimulus bills and financial reform, but their scope was muted. They were not bold but cropped, failing to really address the depth of economic and financial reforms that plagued the nation. Similarly, he proposed closing Gitmo and ending the war in Iraq. Neither really occurred. He did little to pressure Israel for peace. In many ways, the Obama Administration coopted itself into being less bold than it needed to be to effect change.

Siding with the banks. Consistently Obama got it wrong on the economy. He continued Bush’s TARP policy to bail out the banks. He again sided with them on foreclosure. He did not press them far enough on bonuses. Consistently he threw away the Democrat economic populist advantage. He looked to many that he favored banks over homeowners and workers.Party Discipline. Can you imagine Lyndon Johnson pleading with a Ben Nelson to vote for financial reform? Obama could not even get his own party behind him to support policies he wanted.

Republicans. From day one the Republicans sought to sabotage Obama and the Democrats. Foolishly he tried to placate Republicans even though the latter were not bargaining in good faith. One or two tries to bargain with them should have demonstrated this futility.

Define or be defined. John Kerry is the poster child for swiftboating. Politics is about defining yourself and the opponent or be defined. Obama let himself and his policies get defined–such as Obamacare–and he never recovered from that, forcing Democrats into a defensive posture.

Rewarding friends. Winning campaigns is about building coalitions. It is also about rewarding supporters. To build a lasting coalition one has to reward supporters. Obama forgot this. Unions worked hard for him in '08 but he told them to wait on The Employee Free Choice Act. Gays and Lesbians wanted him to repeal “Don’t Ask, Don’t Tell,” but he also told them to wait. The middle class wanted jobs and economic help, he assisted the banks instead. At almost every critical point Obama alienated supporters by telling them to wait. As a result they abandoned him on Tuesday.

Modifying the Filibuster. Democrats had 60 votes in the Senate but acted like they were powerless. The filibuster rule meant Obama’s agenda was held hostage to the likes of Ben Nelson and Mary Landrieu. The first act of the Senate should have been to repeal this rule.

All politics is national. Tip O’Neill once said all politics is local. Actually it is the reverse. National issues now drive local politics. This happened across the 50 states as local elections became referenda on Obama. Democrats in local races in 2006 and 2008 ran against Bush, this time Republicans did the same by running against Obama.

The roots of the Democratic demise go back to day one with Obama. There are many things he should have done differently but mostly it was to forget the basic rules of politics in 2010 that he appeared to understand so well in 2008.

Saturday, October 30, 2010

Growing up in New York a wonderful woman next door turned to me on Election Day in the 1960s and advised me: "Don't vote, it only encourages them to run!" This advice, from an 80 year old plus woman, perhaps under the influence of whiskey, expressed dissatisfaction with politicans and candidates whom she saw as narrow-minded and petty.

I am reminded of her as I think about the looming Election Day this Tuesday. Many of us will render our choices based on fear, self-interest, anger, or who knows what. None of those reasons should guide our voting choices. We can do better than that.

Tom Horner, the Independence Party candidate for Minnesota governor, is haunted by the wasted vote syndrome. He should not be. Nor should any other candidate for office who is considered a longshot, such as Jim Meffert in Minnesota or a Charlie Crist in Florida. Individuals should select their first choice–vote your hope nor your fears–as the saying goes, regardless of whether the choice is Horner, Emmer, or Dayton for governor, or another candidate for another office.

But the first choice of whom to vote for should be more than simply casting a ballot out of anger, self-interest, or partisanship. It should be a vote for our collective future, not simply a private preference. Voting is a private act, but it should also promote a public good.

Voting: A Tale of Two PresidentsWhat do I mean by saying voting should promote a public good? Political scientists write about the strategy and reasons for voting. Some say we vote based on partisan preferences or affiliation. Others contend it is premised on looking backward, or maybe to the future, or based on economics (“It’s the economy, stupid” as James Carville would say). All of these theories have descriptive cogency. But voting should also have a normative or ethical component.

There are good reasons for why to vote a particular way and there are bad reasons. The worst in my opinion was launched 30 years ago with Ronald Reagan who closed out his campaign by asking voters “If they were better off now than four years ago.” This mantra propelled narrow self-interested greed into American politics, asking voters only to consider their own selfishness when they vote. The path from this Reagan quote to Gordon Geckos’ (of the movie Wall Street) “Greed is good” is direct and short.

The best reason or motive to vote? It came from another president in my lifetime–John Kennedy. It was not an election slogan or gimmick but the most famous call to duty from his inaugural address in 1961: “Ask not what your country can do for you but what you can do for your country.” It was a call to what is noble not base, to the public good and not the private interest. It was a call to look beyond partisanship to what is best for all of us.

JFK’s call sounds quaint in the era of self-interested partisanship. But it is precisely the sentiment that needs to guide voters this year.

What is a Wasted Vote?As you ponder your voting choices prior to Tuesday, think about your choices and reasons to vote.

Vote not as a Democrat, Republican, Independent, or something else. Vote as an American or Minnesotan.

Vote not on the basis of partisanship but on what is in the best interest of the country or the state.

Vote not on the basis of narrow self-interest but what is in the collective public interest of us all.

Vote not on the basis of simplistic attack ads and 10 second sound bites but with a sense of realism. Solutions to our collective problems are not simple and are not rooted in blaming "those people."

Vote not on the basis of promises that seem too good to be true but on what is realistic and seems possible.

Vote not on the basis of whether you are now better off than four years ago but ask how your choice will improve our state or country four years form now.

Vote not because you want to freeze the hands of time in some halcyon mythic time of the past in order to take back your country. Recognize that the country belongs to all of us, but especially to a multi-cultural, multi-racial future where we are all in it together.

Vote for a world that will be better for your children, not just your bank account.

Remember, there are only two types of wasted votes: Those not cast and those where you vote for your second choice. Vote for the candidate of your choice, but make sure your choice is what will promote the best interests of us all.

Political scientists like me make predictions based on patterns we have discovered. Prove me wrong and vote for what is best for us all, and make that your first choice.

Friday, October 29, 2010

Continued Poll Confusion?Poll uncertainties continue to dominate Minnesota politics as recent surveys produce vastly divergent results. The MPR poll reveals a 12-point lead for Dayton in the governor’s race, while other surveys yield a narrower lead for Dayton. How do we explain all this?

As I argued in an earlier blog, part of the problem with the surveys is that they are not necessarily capturing the underlying demographic reality of Minnesota. The MPR poll vastly overestimates the percentage of the population which is DFL and it underestimates the percentage who are independent or who have no firm partisan identification.

In addition, many of these polls are done on the cheap, failing to develop good samples that balance appropriately the percentage of the population which is Twin Cities urban, suburban, Iron Range, and greater Minnesota. Other problems are under-sampling by age, caused in part by missing cell phone-only users. There are also issues of who actually picks up a LAN line to answer a call. Some of these survey problems can be solved by increased samples sizes but that means more costly surveys.

But other problems are not solved with money. They are rooted in assumptions about what the state looks like demographically, especially from a partisan perspective. To repeat an earlier blog, here is my approximate assumption of what the state looks like:

35% DFL or leaning DFL30% GOP or leaning GOP10% Independence Party (IP) or leaning IP25% Other or no party identification

Any poll that vastly departs from these approximates, such as the MPR poll, is flawed from the start. My assumptions of these percentages are based on post-2008 election exit polls and they reveal declining support for the DFL and GOP since then. The estimates are also based on talks with party leaders and analysis of voting trends, and efforts to piece together some valid data from the polls.

Finally, let me also say that my estimates are rooted in someone who, in previous a life, worked on or ran about 50 campaigns back in NY, my knowledge gained from teaching campaigns and elections and research methods (I wrote a book on the topic), my knowledge of Minnesota, and finally, some gut intuitions.

Predicting the Governor’s RaceGiven the above, my prediction for the governor’s race? Here is how I analyze it.

Each of the three major candidates is doing a pretty good job holding their bases. Thus, I start with Dayton, Emmer, and Horner at 35%, 30%, and 10%. While the polls have been flawed, two initial truths come out: 1) Dayton and Emmer are holding about 80% of the bases and Dayton and Horner are capturing most of the swing or moderate voters. I am going to assume Horner is holding about 90% of his base. Emmer has been less successful in attracting the swings. Dayton is capturing about 50% of the moderates, Horner is about 30%, Emmer 20%.

However, this first calculation makes several assumptions. It assumes no undecided voters or that undecideds break in a pattern noted above. Second it assumes support for all of the three candidates is firm and that everyone will come to vote. I do not make this assumption. We know at least three additional things that correct these numbers.

First, turnout this year will be less than in 2008. In 2008 approximately 77% of the eligible population voted. Mark Ritchie estimates 60% turnout this year. I think 55-60% if realistic. This is 17-22 points less than 2008. Many of these not voting will be DFL leaning voters who came out for Obama. This means among likely voters, the smaller electorate this year will be more heavily GOP than two years ago.

Second, national polls and state polls reveal GOP voters more highly motivated than either the DFL or swings. Women (swings and part of the DFL base) are less motivated to vote compared to males. Young are less likely to vote than old (although old seem to favor Dayton). Support for Dayton is less firm, passionate, or motivated to come out and vote for him.

Third, as Election Day looms and it looks less likely that Horner can win, swings plagued by the spoiler fear (A vote for Horner is a vote for my worst or last choice) will abandon him. There is also a polarized electorate problem I have discussed. Some will opt not to vote, some wills shift to Dayton, a few to Emmer.

These three factors will produce a likely electorate more GOP than my initial numbers suggest. This is the issue of the likely voter. Correcting for these three realities is not a science, but an estimate or gut guess. I think Horner fades down to about 10-12% when a final count is done. He may even fade lower. Dayton picks up some Horner votes and the more GOP leaning electorate yields this as my estimate.

The Winner is . . .Dayton!Dayton 46%Emmer 43%Horner 10%Other 01%

I am guessing Dayton has about a 3% lead in the polls, it may be as high as 5%, depending on whether my initial guesses about the size of the bases, capture of the swings, and shape of the electorate are accurate.

I am not offering science here, but best estimates or guesses. Now let the voters decide.

Monday, October 25, 2010

The phrase used to be “As Maine goes, so goes the nation.” The origin and irony of the phrase was in the state’s reputation as a political bellwether for national presidential politics, culminating in 1936 when it supported Alf Landon over FDR for president.

Yet just the opposite seems to be true for Minnesota. It was the only state to go for Mondale in 1984 when the rest of the country boarded the Reagan landslide train. Minnesota has a reputation for third party politics–think of Floyd Olson and Jesse Ventura. It also has a progressive streak that included socialists in the 1920s and 30s, Hubert Humphrey, Walter Mondale, Eugene McCarthy, and Paul Wellstone. Minnesota seems to march to its own drummer. In 2010 that exceptionalism may lead to mark Dayton winning the governorship.

Minnesota: The Fargo Factor v. Lake Wobegon?Minnesota has the Fargo factor (think the movie) with an endearing sense of traditionalism and Nordic rugged individualism. But there is a Lake Wobegon aspect where we do think all the children are above average. The reality of Minnesota is caught somewhere between these two pop culture images.

Explanations for the state’s political idiosyncrasy are varied. Some locate it in Minnesota’s political culture, but stating that tells us nothing. It is like saying there is something in the drinking water. Others contend that the Scandianian culture is an explanation. Perhaps true, but the state is more German than Nordic and the influx of immigrants from other parts of the world should have a bigger impact on politics than it has if this were true.

I describe Minnesota as a very religious state with a tradition of religious activism that expresses a dislike of corruption and a demand for reform and clean government. It is a liberal state with conservative pulls. It has a populist tradition, a commitment to equality, and a generally positive view of an activist government. Historically is has expressed a fear of accumulation of power in business, with government historically viewed to protect people from business. Some of this may be changing, but this is the core of Minnesota politically.

Explaining Minnesota’s Independent StreakHow do we explain Minnesota’s independent streak? The state has numerous groups and regions that compete and none of them are dominant. This means that the key to winning in Minnesota is by building alliances to forge coalitions. The process of coalition building has resulted in tight party competition, occasional third party support, and high voter turnout.

In addition, Minnesota has a long tradition of non-partisan and partisan elections. This combination of two types of elections produces an electorate that is not historically as committed to party voting as one might see in other states. For example, from 1913 to 1974 the Minnesota Legislature was non-partisan. Local races remain non-partisan, as is true with judicial races. Parties have and remain powerful forces in the state, but their allure is waning. No party–DFL, GOP, or GOP–commands 51% of the population. Today I think it is DFL 35%, GOP 30%, Independence 10%, and no party at 25%. The point here is that politics is competitive and the balance of power is in mobilizing the base but more importantly, in moving the swing voters to your side. Win the swings, win the state.

Minnesota v USA in 2010Winning over the swings is not Einstein politics. This is real simple Politics 101. But it is often forgotten by many. The DFL for years lost control of the center which is why it has not won the governor’s race since 1986 and why in 1998 it lost the House. It was not until 2004 and 2006 that it learned to recapture the center and was rewarded with control of the House again. The same problem has plagued the national Democrats. Yet in 2008 it captured the center and the result was Obama’s victory along with strong congressional majorities.

Now the national Democrats have lost the center again, with the swings moving to the GOP this year. One can debate the reasons for this loss and whether Obama had alternative options with the progressives. Yet it is clear that in 2010 the Democrats have lost the swing voters, that jobs and opposition to taxes are major policy drivers, and that the GOP has the political narrative this year–it is “Change.” Sound familar?

All this should suggest a great year for the GOP in Minnesota and that Emmer is the next governor. But not necessarily so.

Tons of polls and surveys have been done this year. Many are awful. But some truths emerge. First, large majorities of Minnesotans recognize that taxes need to go up to address services. They have seen schools, roads, and bridges decay and now about 60% or so recognize a need for tax increases. Thus unlike nationally, the anti-tax message has limited appeal beyond a GOP base plus some swings.

Second, polls suggest that Dayton is capturing the bulk of the swing voters. Emmer is not getting many swings. Horner is getting them. Emmer is running base politics. By that, from the day he accepted his party nomination he declared he would run from the right and not from the center. Dumb move! He forgot the battle is from and for the center. He ran as and let the DFL paint him as a right-winger and he is paying the price. He is still in the race because Dayton has run a lackluster campaign and his supporters are not as excited or passionate about him as the Emmer voters are for their candidate. This explains Obama’s pep rally for Dayton over the weekend. Dayton needs his base–plus women and swings–to get excited and vote for him. If they do, Dayton bucks the national trend and wins.

Emmer may still win, but it is a battle. He needs his base to vote–and they will–he needs to pickup more swings–hard to see how–and he needs Dayton’s people to stay home on election day.

Tuesday, October 19, 2010

Fourteen days to go to election day. Where are we? Some quick random thoughts.

Horner, Star Tribune, and the Governor’s RaceDid Horner get a boost from Star Tribune and other newspaper endorsements? Not really.There are several reasons for this. First, at least with the Star Tribune, everyone knew they were going to endorse him ever since the non-endorsement endorsement a few weeks ago. Thus, the impact of this new endorsement was muted. Second, readership of papers is down and their impact is less, especially in a multi-media environment. Third, swing voters, those who have not made up their minds, probably will not pay much attention to the endorsement. Liberals will not change their mind by the endorsement and the same is true of conservatives (DFL and GOP). Finally, the endorsement still does not overcome the spoiler issue. As I argued before, third party candidates such as Horner suffer from the “A Vote for Nader is for vote for my worst fear.” Horner still needs to show he can win and to do that he needs to show that one of the other two main candidates, most likely Emmer, cannot win. The endorsement failed to do that.

The biggest winner here of the Star Tribune endorsement is Dayton? Why? Polls already suggest that Dayton has a majority of the moderate or swing voters with Emmer capturing very few of them. Horner needs to pick them up to win (plus peel off partisans). Maybe the collective endorsements of all the papers pull some moderates from Dayton, but I think the real danger is that it pulls what few moderates are voting for Emmer away from him and to Horner. It may also pull more of the moderate GOP away from Emmer. Phrased differently, the endorsements do more to fragment the anti-Dayton vote.

As I see it now? Dayton still has a slight lead of about 5 points. However his base is less passionate about voting. His task is to motivate the base and swings to support him. Thus, Obama might make sense. Dayton has also shifted from talking taxes to jobs and education which plays well with swings and moderates.

Emmer has a smaller base and is behind. He has few swing or moderate voter support. His base is motivated to vote. He needs to deliver them (thus why Gingrich and Romney make sense) but he also needs to bring more moderates to his side. Bringing partisans such as Romney do little for that and thus the reason for new commercials seeking to moderate an image. It may be too late.

Finally, Horner needs to project the winner image and show another candidate cannot win. Paper endorsements and trotting out support from individuals such as Michael Ciresi help, but I do not know if they will be enough. Unfortunate for Horner is that we live in a poll-driven world. Unless he shows real growth or gain in the next poll numbers he may not get the momentum shift he needs for election day. Standing on your record or platform may not be enough to establish win-ability.

Bachmann and Clark: Shocked about Hypocrisy!News has surfaced that Bachmann requested surplus money while denouncing it? News? Hardly. If hypocrisy were grounds to exclude people from public office the halls of Congress would be empty. No one should be shocked by Bachmann’s position, the voters of the district know her and her views. This is a $20 million race that Democrats could never win and which long ago ceased to be about issues. It is an ugly expense race where truth seems unimportant to who wins.

Sunday, October 17, 2010

Oh yea,Mm,Still don’t know what I am waiting for,and my time was running wild,a million dead-end streets andEvery time I’d thought I got it madeit seemed the taste was not so sweet–Changes, David Bowie

Change. Four years ago voters demanded it and they ousted the Republicans from Congress. Two years ago they demanded it and pushed Obama into office along with huge congressional majorities. Now change may do Democrats in, producing a GOP House and perhaps, but less likely, a Senate.

What is certain is that whatever voters do this fall, change will not be the result. If Democrats retain control of both houses of Congress it will be by the narrowest of margins, guaranteeing gridlock for two more years. The same is true whether the GOP takes both houses or the parties split. The voters will get more of the status quo. The desire for change will produce its opposite. How Orwellian.

But what is change and what do voters want? These two questions have always perplexed me. When I teach my undergraduate Intro to American Politics class I often begin the class with a discourse on change. I point out first that there is a perennial demand for change among the American electorate along with an equally perennial frustration that change did not occur. I then point out that a defining characteristic of American politics was how the constitutional framers designed a political system that was meant to frustrate and slow down political change.

Checks and balances, separation of powers, federalism, bicameralism, and staggered elections were all designed to break up political power and slow down political change. As James Madison pointed out in Federalist 10, the main threat to popular government was the danger of majority faction–the tyranny of the majority for Alexis deTocqueville. The best thing about a popular government is rule by public opinion, the worst is the same. Madison and the framers sought a system to slow down political change to frustrate the ability of the majority to trample on the rights of the minority. For good or bad, change is meant to be slow or incremental. This is the reality of American politics by design. Americans who do not realize this are frustrated because of logic of our political process.

But institutional design has been compounded by other problems. For example, in the Senate the filibuster makes it impossible to get work done, allowing 41 senators who could represent less than 11% of the population to halt change. One of the biggest mistakes Democrats made in 2009 when they had 60 votes was not to abolish the filibuster rule. Instead, they let themselves be held hostage to Ben Nelson, Blanch Lincoln, and other Democrats who are barely in tune with their party. Thus, lack of party discipline also hampered the Democrats during the Obama years.

Additionally, Obama’s lack of leadership–a failure to take control of the agenda and cede it to Congress–was a major problem. Can anyone ever imagine a Lyndon Johnson letting a Ben Nelson toy with his party over whether to vote for health care reform? Conversely, what has really struck me about Obama is the timidity of change. He has done so little with so much promise. Yes a health care bill but mediocre. Yes financial reform, but mediocre. Yes a stimulus, but mediocre. He has delivered on major promises but the scale of change or reform was quite minor.

But finally, the problem of change resides with the voters. What do they really mean or want when they say change? Real change is what happened when in the early 1990s people walked out of their houses in Eastern Europe and brought down the Berlin Wall. Or in South Africa when they ended apartheid. I doubt that is what American voters want.

Change in the last few years might have been "out with George Bush." End the wars, end the squabble in Washington, or something else. I just do not know. Change seems more negative than positive–voters know they do not like the status quo but do not know what they want. They want something to change for the better but seem blind to what it is they want. Moreover, voters are not of one mind. For those who are angry and demand change this year, are they the same ones who wanted it two years ago? Maybe yes, but the American electorate is so fragmented that there is no real consensus on what change is supposed to be.

Sunday, October 10, 2010

On Saturday, October 9, Hamline University hosted a gubernatorial debate on campus in conjunction with Fox 9 news. I attended and observed the debate, giving me an opportunity to assess the candidates up close.

The Context

Coming into the debate, my sense is that Dayton had a slight lead of 3-5 points over Emmer, with Horner a distant third at around 12-15% support. The three candidates had some shared goals–avoid gaffes and motivate their bases–but they also had divergent objectives. Dayton has a lead, but his base is less motivated to vote this November. He especially needs to motivate women and the swing voters to turn out. If they do, he wins.

Emmer is behind slightly but his base–angry white males–are highly motivated to vote. Emmer also needs to win some swing voters to his side since I do not believe he can win simply by motivating his base, even if Dayton’s does not fully mobilize to vote.

Horner needed a knockout punch. He may have plateaued by capturing his base and a few swings, but he cannot rise much further unless he can convince voters that one of the other two candidates cannot win in November. Most probably, this means he needs to convince other GOPers that Emmer cannot win, thereby leading to a rush of voters from Emmer to him in fear that Dayton will win.

My analysis assumes at this point several things. First it assumes both Dayton and Emmer are holding their bases and that Dayton is doing better at capturing the swings than Emmer and Horner. In making this argument I am at odds with Larry Jacobs and what his MPR poll states. On Almanac I made these claims and Larry said his poll suggests that there are large defections from the bases of both Dayton and Horner, that swings are more in play for Horner than I think, and that in general the GOP is worried about holding on to its voters. He cites as evidence of the latter the Horner press conference with over a dozen former GOP state legislators endorsing him and the reaction that Tony Sutton had to this press conference.

With all due respect to Larry, I have already made clear why his poll is really flawed. Steve Schier has made parallel claims. I am unpersuaded that the poll accurately captures what the electorate and party alignment is in Minnesota and that means that the lead of Dayton’s is inflated in his poll. Larry’s poll is at odds with almost every other poll and it comes in conflict with recent Rasmussen polls showing both Dayton and Emmer holding 80% of their bases.

Finally, in many ways I do not think that the current GOP cares about other former legislators endorsing Horner. They represent an older GOP party replaced by a new more conservative one. Yes, they do not want to see them vote for Horner, but that is no longer their base. Sutton criticized their actions, but that is not a sign of panic.

About the only thing I agree with Larry and his poll is that it is difficult to determine who the likely voter is. Stacy Hecht well stated this problem on Almanac, with the other three of us (Schier, Jacobs, and me) concurring.

The Debate

This was the 23rd debate. In too many ways the candidates looked like they were going through the motions. Each had predictable answers to predictable questions, and each responded to one another the way you expected.

Each campaign had its groupies there and they applauded on cue. Fox 9 wanted a more contentious debate and encouraged candidates to cut off one another. They wanted theater. The candidates did not oblige, again seeming to prefer the predictable to the novel.

Dayton:He seemed flat. He did not answer the questions directly and his style was weak. He did little to excite his base. He could have done more to link Emmer to Pawlenty and Palin to excite his base, but he did not. He also did not criticize the others very much and he did not do much to reach out to female voters or swings. Dayton did discuss education which is important to his base but the passion was not there.

His finest moment? Discussing why we need bullying legislation, he spoke of equality and same sex marriage. He also quoted James Madison on why government is needed here–men are not angels.” The nerd in me liked this.

Emmer:He seemed on autopilot. The answer to everything was cut taxes, less government, and create more jobs. A variation of this was his constant protest that he was the only candidate who has put forth a balanced budget. No one but his base believes this. His answer to a student question about what he planned to do about the high cost of going to school? Schools needs to restructure and if we had more and better jobs then student debt would not be a problem! Hmm, tell that to anyone with huge students debts. Even a high salary does little to address the burden of high debt load.

His defining moment? He came out against new legislation to crack down on bullying motivated by anti-gay bias. He said we had too much government already and that it was up to parents teaching respect and giving teachers more authority to do what they need to do but cannot because of fear of lawsuits. Clearly Emmer was speaking to the base.

Horner:He was clear with answers and specifics. As a communications specialist he knows how to frame answers. He did a good job distinguishing himself and pointing out he was not a DFLer or GOPer.

His finest moments? Two stand out. First, he gave specifics to what he would cut to balance the budget. He noted JOBZ and ethanol subsidies as two cuts. Also, when responding to Emmer, who said no to new anti-bullying laws because it was a private issue, Horner said when others get hurt it is a public matter.

And the Winner Is?On style and substance (that is how he looked and in answering the questions) Horner won. However, he did not knock anyone out. Emmer was second, Dayton third. Emmer managed to say what his angry base wanted to hear, Dayton did not do much to excite the passion of his supporters.

Horner’s clock is still ticking but he needs major movement soon. Dayton needs to refocus in the last few weeks and appeal to suburban females to vote for him. Pitch commercials to them. He also has started linking Emmer to Pawlenty and needs to do more of that.

Emmer has his base excited but needs to pick up some moderates. Also, everyone is expecting him to do a meltdown like Hatch did in 2006. Maybe Horner, Dayton, or a third party add will do that. Emmer also has a Pawlenty problem in another way. Pawlenty is unpopular and does nothing for him but as governor he could assist in policy or other ways. However, Pawlenty is off on his Don Quixote-esque pursuit of the presidency and seems uninterested either in Emmer or Minnesota. However, that is another story for another blog.

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.